Cinneadh
Mr C and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-155264-B2P6X3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-155264-B2P6X3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte had established that it did not hold any further information in accordance with article 7(5) of the AIE Regulations
23 May 2025
1. On 27 September 2024, the appellant submitted a request to Coillte seeking access to the following:
“1. All information related to the design, construction and development consent sought and received for the section/s of forest road leading from the public road to the start of the proposed forest road CN95595. To include details for the whole of RN09R0003.
2. All information related to the design, construction and development consent sought and received for the section/s of forest road leading from the public road to the start of the proposed forest road CN95186. To include details for the whole of RN04R1027.
3. All information related to the design, construction and development consent sought and received for the section/s of forest road leading from the public road to the start of the proposed forest road CN94714. To include details for the whole of SO06R1035”.
2. On 24 October 2024, Coillte informed the appellant they were extending the timeframe for dealing with the request by two months from the date on which the request was received, as permitted by Article 7(2)(b).
3. On 27 November 2024, Coillte refused the request as they had “been unable to locate any records relevant to your request. I therefore refuse your request under Article 7(5) of the AIE Regulations”. Coillte detailed the steps that has been taken to search for the information, stating;
“it was assigned to Coillte Forest’s Engineering Process Manager who is the relevant subject matter expert. After extensive searches were conducted it was confirmed by the SME that specific information related to the construction of these roads is not available. Significant time was taken to conduct an extensive search of the older records system (FIS – Forest Information Systems). However, there is no common reference or link between the old data (the entity used to record the works completed) and the current system (LRM – Land Resource Manager), which has made it impossible to retrieve detailed historical records about these roads' construction.
Furthermore, consultations were carried out between the Engineering Process Manager and local BAU teams to gather any insights or historical context. Despite these efforts, the passage of time and subsequent staff changes meant that no detailed or reliable information could be obtained. It is also important to note that these roads were built prior to the introduction of the regulatory requirement to obtain a licence from the Department of Agriculture, Food, and the Marine (DAFM). As this requirement was established after the roads were constructed, no such licences would have been issued or necessary at that time.”
4. On 27 November 2024, the appellant requested an internal review of the Coillte’s decision “as it is not clear precisely what searches were undertaken and what time period was covered”.
5. On 23 December 2024, Coillte issued its internal review decision. In doing so, it affirmed its original decision.
6. On 14 January 2024, the appellant appealed to this Office.
7. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Department and the appellant as outlined above and to correspondence between my Office and both the Department and the appellant on the matter. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. In accordance with article 12(5) of the AIE Regulations, my role is to review Coillte’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require Coillte to make available environmental information to the appellant.
10. The scope of this review is to determine whether Coillte were justified in refusing access to the requested material under article 7(5) of the AIE regulations on the basis that there are no actual records available.
11. On 16 January 2025, Coillte were notified by this Office of the acceptance of the appeal and invited to make detailed submissions. On 25 February 2025 Coillte contacted this Office and stated“Coillte, for the purpose of the Appeal, relies for its full effect and meaning on the contents of the Initial Decision and also on the contents of the Internal Review which provides additional information on searches and reasoning for Coillte’s refusal”.
12. Coillte’s internal review decision, dated 23 December 2024, detailed the searches undertaken. Including;
• Primary Search: Coillte searched for the road references RN09R0003, “RN04R1027, and SO06R1035, but found that the classification systems had changed since 2016. Coillte stated “Unfortunately, this system overhaul resulted in the creation of an entirely new classification layer, severing any direct link to previous road numbers. As the Request pertained to the original construction dates of these specific roads, it was confirmed that Coillte does not hold records related to these earlier classifications”.
• Secondary Search-Phase One: Coillte confirmed enquires were made through local teams which “included telephone conversations with staff and contractors who may have been involved in the relevant projects to determine if any records or information was held by them”. Coillte confirmed staff conducted “searches of local file drives, cloud-based storage systems, and Office 365 archives, including email correspondence. Despite these efforts, no formal records satisfying the Request were identified”.
• Secondary Search - Phase Two: Coillte analysed historical aerial imagery and concluded “that roads corresponding to the new road numbers were each present/visible in aerial imagery dated 2013. However, imagery from early 2010 did not show the existence of these roads. This observation, corroborated by engagement between Coillte staff and local external contractors, confirmed that the construction of the roads in question occurred during the summer of 2010. It was this evidence that established that the roads were constructed prior to the introduction of the regulatory requirement to obtain a license from the Department of Agriculture, Food, and the Marine (DAFM). As this requirement was implemented after the roads were built, no such licenses were issued or required at the time of construction”.
13. Coillte also explained that due to the transition from the older record keeping system to the newer system it “has made it impossible to retrieve detailed historical records about these roads' construction”.
14. On 13 January 2025, the appellant provided this Office with a preliminary submission. The appellant argued the search terms used, “RN09R0003, ” “RN04R1027, ” and “SO06R1035 ” were irrelevant as they post-date the period of construction. The appellant maintained“There is no evidence that records relating to the re-classification process were searched to determine whether a connection could be established between the new references and the old references. There is an assertion that the links between the old references and new references were severed but no evidence that Coillte have carried out searches to confirm this”.
15. The appellant stated, in relation to Secondary Search - Phase One,“No details of the search terms employed have been provided for the ‘extensive searches’. A requester should not be expected to accept that extensive searches have been conducted without more details of what searches were undertaken and what those searches produced. Coillte should clarify what they consider the difference to be between formal and informal records in the context of the Regulations”.
16. The appellant maintained“On the basis of what evidence from the local external contractors has it been confirmed that the construction of the roads in question occurred during the summer of 2010? Is Coillte relying on anecdotal evidence? If physical evidence exists why was it not provided? There is no evidence to confirm that all three roads were constructed during the summer of 2010. There is, however, publicly available evidence to demonstrate that one section of road had not been constructed as of April 2011. This calls in to question the reliability of any evidence used by Coillte in making their assertion regarding the construction period of the roads” . The appellant maintains Coillte have failed to provide adequate details of the searches undertaken.
17. In light of the particular circumstances of this case, I decided that it would be appropriate to issue a draft decision to the parties and to invite their submissions on any additional point of fact, error of fact or error of law with reference to same. On 1 April 2025, a draft decision was provided to the parties.
18. On 2 May 2025, Coillte provided a final submission to this Office, which may be summarised as follow:
• Coillte provided further detail on the searches undertaken stating,“the following keywords were used in searches which were not outlined in the Initial Decision or in the Internal Review Decision. The additional keywords searched were ‘Carrownskeheen’, ‘Edenan’, ‘Kinclare’, ‘Castlecarragh’ and ‘Castlerock’ being the relevant townlands where the works were undertaken and references to such townlands would be contained in relevant records if they existed. The SME also searched using terms “CN95595”, “CN95186” and “CN94714” being licence numbers that relate to the roadworks that were carried out at the areas / roads the subject of the Request”.
• Coillte confirmed searches were undertaken“on the relevant local authority planning portals for any relevant initial development consents. The search terms used on the portals for County Leitrim and County Sligo were “New Forest Entrance”, and “Development Forest Entrance”, and “Creation Forest Entrance” and “Coillte Forestry” along with the relevant townlands ‘Carrownskeheen’, ‘Edenan’, ‘Kinclare’, ‘Castlecarragh’ and ‘Castlerock’”.
• Coillte submitted“that a retention planning application is not relevant to the information on “design, construction and development consent” requested by the Appellant”, and argued the appellant was seeking to broaden the scope of his AIE request.
19. I have carefully considered all the submissions made by the parties, including those made on my draft decision. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
20. In this case, the appellant contends that Coillte should hold further information relevant to his request. Article 7(5) of the AIE Regulations is the relevant provision to consider, where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows;
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it”.
21. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that my Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the regulations;
(i) an outline of exactly which areas/units etc. of the organisation were searched for the information;
(ii) an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate;
(iii) details of the individuals consulted in connection with the search;
(iv) a description of the searches carried out to cover the possibility of misfiled/misplaced records;
(v) details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case;
(vi) the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
22. This Office’s approach to dealing with this type of case is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied. What will be considered reasonable will vary from case to case.
23. While Coillte has stated“extensive searches were conducted” , Coillte initially failed to provide specific search terms used, which is a critical factor in assessing the adequacy of search efforts. Without specifying the keywords or parameters used in its searches, there is no means to verify whether it efforts were sufficient or targeted correctly. Additional search details were provided by Coillte following the issuing of the draft decision. While Coillte searched for the current road numbers the appellant argues this is“irrelevant as they post-date the period of construction” . Coillte also confirmed“no formal records” were identified however it has not categorically stated if any informal information was identified which could fall under the scope of this request. Coillte clarified in a further submission that no informal information was identified.
24. Coillte relied on historical aerial imagery from 2010 and 2013 to assert that the roads in question were built before licensing requirements were introduced. However, Coillte has not demonstrated conclusively that the roads were built in 2010 rather than 2011. The appellant maintains there is“publicly available evidence to demonstrate that one section of road had not been constructed as of April 2011”.
25. Coillte have emphasised“that the roads were constructed prior to the introduction of the regulatory requirement to obtain a license from the Department of Agriculture, Food, and the Marine (DAFM)”. Forest Entrances – Requirements for Mandatory Consultation published by DAFM sets out;
“Under Section 4 of the Planning and Development Act 2000, the construction of forest roads and ancillary works is exempt from the planning system. Up to 21 September 2011, this exemption included the creation of forest entrances to and from public roads. However, from that date, forest roads that included entrances from public roads or the material widening of existing entrances, required planning permission (introduced by Section 17 of the Environment (Miscellaneous Provisions) Act 2011”.
If any of the roads in question were constructed after this date, planning records should exist. Coillte confirmed searches were undertaken “on the relevant local authority planning portals for any relevant initial development consents”, but view retention planning permission as falling outside the scope of this request. Retention planning permission is provided for under S34(12) of the Planning and Development Act 2000 and I am of the view that it is intrinsically linked with planning and development and directly relevant to the appellants request. While it is not the role of this Office to determine if Coillte complied with its regulatory requirements or to identify when the road was constructed, the relevant point is if construction of these roads occurred after 21 September 2011 a license would have been required and this information would fall within the scope of the request.
26. The appellant maintains no searches were undertaken which focused on the specific location of the roads, but Coillte have now confirmed searches were undertaken of the relevant townlands where the roads are located. Coillte have published a Forest Road and Bridge dataset which provides the location for each of the roads in question. Forest Road RN09R0003 is located at 53.810436, -8.021452 . Forest Road RN04R1027 is located at 54.092027, -8.871416 . Forest Road SO06R1035 is located at [external-link https://www.google.ie/maps/place/54%C2%B005'30.8%22N+8%C2%B052'17.1%22W/@54.091889,-8.871417,17z/data=!3m1!4b1!4m4!3m3!8m2!3d54.091889!4d-8.871417?entry=ttu&gep=EgoyMDI1MDUxNS4xIKXMDSoASAFQAw%3D%3D | 54.092027, -8.871416 ]. Coillte had initially not provided any evidence or details of searches that may have been conducted in relation to these locations. On 17/08/2015, Coillte submitted retention planning permission for “1 no. forest road access on the R371, with security barrier Carrownskeheen Townland, Strokestown, Co. Roscommon”_, details of which are available here . This is the location of Forest Road RN09R0003. I consider that this information would fall within the scope of the AIE request as it can broadly be categorised as an application for development consent in respect of this road and would also contain relevant information on the design and construction of the road. This information was not identified by Coillte during its searches for information within the scope of the request.
27. Coillte have now confirmed that searches were undertaken in relation to the townlands as well as searches of local authority planning portals, as detailed at point 18. However, Coillte do not consider the retention planning permission relevant to the AIE request. There is an obligation on public authorities to interpret AIE requests in a broad manner and I am of the view that retention planning permission would fall within the scope of the request as the appellant sought“All information related to the design, construction and development consent sought and received” . Some information must exist within Coillte in relation to the retention planning application and this has not been identified or considered in the processing of this request.
28. Coillte has not disclosed the specific images, metadata or analytical methods used to determine the construction timeline. Without additional supporting evidence, its conclusion that the roads were built in 2010 remains unsubstantiated. If Coillte had provided evidence of the roads being constructed prior to 21 September 2011, it would strengthen Coillte’s argument that they hold no further records relevant to the request. The retention planning permission submitted by Coillte in relation to Forest Road RN09R0003, on 17/08/2015, would indicate this road was constructed prior to the license requirement introduced on 21 September 2011. No factual evidence has been provided by Coillte that Forest Roads RN04R1027 and SO06R1035 were constructed in 2010. The reliance on verbal accounts from external contractors is problematic as no records of these communications were provided, and no context was provided as to the basis for the external contractors concluding that the roads were built in 2010.
29. The appellant raised concerns that Coillte did not attempt to cross reference the old and new road classification systems. Coillte has stated the new classification system resulted in“severing any direct link to previous road numbers” , but Coillte has not provided any evidence that it attempted to reconcile the new and old classification systems. Coillte stated“As the Request pertained to the original construction dates of these specific roads, it was confirmed that Coillte does not hold records related to these earlier classifications”. This appears to be an overly narrow view of the AIE request as the appellant sought“All information related to the design, construction and development consent” for each of the proposed roads to include details of the existing forest road.
30. Having regard to the above, I cannot find that Coillte has taken adequate steps to identify and locate all relevant environmental information held by it. As such, I am unable to find that article 7(5) of the AIE Regulations can be relied upon by Coillte.
31. Accordingly, I annul the decision of Coillte in its entirety and direct it to consider the appellant’s request afresh and make a new internal review decision in accordance with the provisions of the AIE Regulations, and in particular the requirement to take adequate steps to identify and locate all environmental information held by it within the scope of the request.
32. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information